SCOTUS Clarifies Stop-Time Rule for 42A Cancellation

It functions like a criminal-recidivist statute, and 'inadmissibility' thereunder is a status

By Andrew R. Arthur on April 26, 2020

  • An offense referred to in the criminal grounds of removability halts the accrual of residence under the stop-time rule for 42A cancellation even if the applicant is not removable based on that offense.
  • The stop-time rule, like a traditional criminal-recidivist statute, makes an alien's criminal history relevant to his or her eligibility for 42A cancellation.
  • The key date for application of the stop-time rule is when the alien commits a criminal offense referred to in section 212(a)(2) of the Immigration and Nationality Act — not when the alien is convicted of that offense.
  • Inadmissibility is a status that can result from an alien's commission of certain offenses listed in section 212(a)(2) of the INA for purposes of the stop-time rule, even if that alien has already been admitted and is not seeking admission.

On Thursday, the Supreme Court issued a decision in Barton v. Barr, holding that a lawful permanent resident (LPR) is ineligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act (INA) (known as "42A cancellation") due to his commission of a crime involving moral turpitude (CIMT) committed within seven years of his admission, despite the fact he was not deportable for that offense. Specifically, it held the "stop-time rule" in section 240(d)(1) of the INA (under which the accrual of lawful permanent residence for 42A is halted by the applicant's commission of certain criminal offenses), functions like a recidivist statute (similar in purpose to those found in criminal law), and that "inadmissibility" is a status for purposes of that rule, even for an alien who is not applying for admission.

As I explained in a November post following oral arguments in that case:

Quite a bit of background is in order. The petitioner is a native and citizen of Jamaica who entered the United States on a tourist visa in May 1989. He adjusted his status to LPR three years later. According to the government's brief, he was driving past his ex-girlfriend's house on January 23, 1996 when a passenger in his car fired shots into the house, which was occupied at the time. He was convicted of "three counts of aggravated assault, one count of first-degree criminal damage to property, and one count of possession of a firearm in the commission of a felony, all in violation of Georgia law." In 2007 and 2008, he was also "convicted of various controlled-substance offenses," again under Georgia law.

In 2016, the Department of Homeland Security (DHS) placed respondent into removal proceedings. He was found to be removable under section 237(a)(2)(B)(i) of the INA as an alien convicted of violating a law relating to a controlled substance, and section 237(a)(2)(C) of the INA as an alien convicted of a firearms offense.

Barton applied for 42A cancellation as relief from removal. DHS opposed that application, arguing that respondent was ineligible for relief because his conviction for aggravated assault was a CIMT that, as noted, had been committed within seven years of his entry to the United States.

There is no question that Barton's 1996 aggravated assault was a CIMT, but he was not deportable as a result of that offense under section 237(a)(2)(A)(i) of the INA because he was not convicted of the crime within five years of his admission, as required for that ground of deportability. Further, none of his other convictions were CIMTs, such that he would have been deportable for committing multiple CIMTs at any time under section 237(a)(2)(A)(ii) of the INA.

To be granted 42A cancellation, an alien must have been an LPR for five years and have resided in the United States continually for not less than seven years after any admission, and not have been convicted of an aggravated felony. A grant of 42A cancellation essentially waives any ground of inadmissibility or deportability, other than aggravated felony grounds.

The sole issue in Barton was whether the petitioner's commission of that CIMT (for which, again, he was not removable) had halted his accrual of the required seven-years' lawful residence for 42A cancellation under the "stop-time rule" in section 240A(d)(1) of the INA. The rule states, in part:

[A]ny period of continuous residence or continuous physical presence in United States [for purposes of 42A cancellation] shall be deemed to end ... when the alien has committed an offense referred to in section 212(a)(2) [of the INA] that renders the alien inadmissible to the United States under section 212(a)(2) or removable from United States under section 237(a)(2) or 237(a)(4).

The Court cut through the Gordian knot that is that rule fairly simply and logically. First, it found:

In specifying when cancellation of removal would be precluded because of prior criminal activity, Congress struck a balance that considers both the nature of the prior crime and the length of time that the noncitizen has resided in the United States. If a lawful permanent resident has been convicted at any time of certain crimes (what the immigration laws refer to as an "aggravated felony"), then the noncitizen is not eligible for cancellation of removal. If during the initial 7-year period of residence, a lawful permanent resident committed certain other offenses referred to in [section 212(a)(2) of the INA], then the noncitizen likewise is not eligible for cancellation of removal.

Here, in determining that Barton's commission of a CIMT in 1996 halted his accrual of continuous residence short of seven years for purposes of 42A, the majority compared the stop-time rule to "a traditional recidivist sentencing statute", concluding:

In an ordinary criminal case, a defendant may be convicted of a particular criminal offense. And at sentencing, the defendant's other criminal offenses may be relevant. So too in the immigration removal context. A noncitizen may be found removable based on a certain criminal offense. In applying for cancellation of removal, the noncitizen must detail his entire criminal record on Form EOIR–42A. An immigration judge then must determine whether the noncitizen has been convicted of an aggravated felony at any time or has committed a [section 212(a)(2) criminal] offense during the initial seven years of residence. It is entirely ordinary to look beyond the offense of conviction at criminal sentencing, and it is likewise entirely ordinary to look beyond the offense of removal at the cancellation-of-removal stage in immigration cases. [Emphasis added.]

The Court deemed it "not surprising" that Congress directed immigration judges to consider those section 212(a)(2) criminal offenses even if they did not form the basis for deportability, because: "If a crime is serious enough to deny admission to a noncitizen, the crime can also be serious enough to preclude cancellation of removal, at least if committed during the initial seven years of residence."

The stop-time rule is phrased in a specific manner, focusing on whether an offense was committed, not whether a conviction was for that offense was entered, during the seven-year statutory period. Noting this, the Court described the date of commission of the section 212(a)(2) offense as the "key date" in "calculating" (or more precisely, halting the accrual of) the seven-year period of residence following an admission, affirming Congress' clear mandate in the stop-time rule.

In addressing the fact that, as a previously admitted alien, Barton was not subject to inadmissibility under section 212(a)(2), and could not have been charged with deportability under section 237(a)(2) of the INA for the CIMT that barred his application for 42A cancellation, the Court (returning to its earlier point) found:

Properly read, [the stop-time rule] is not simply an "offense of removal" statute that looks only at whether the offense of removal was committed during the initial seven years of residence. Rather, this is a recidivist statute that uses [section 212(a)(2)] offenses as a shorthand cross-reference for a category of offenses that will preclude cancellation of removal if committed during the initial seven years of residence.

To prove this point, the majority contrasted the stop-time rule with other provisions in the INA that only focus "on the offense of removal", particularly the mandatory detention rules in section 236(c) of the INA and the rules limiting judicial review in section 242(a)(2)(C) of the INA. Those provisions apply only when an alien is removable on specified grounds.

Further, and significantly, the Court held that the text of the INA "employs the term 'inadmissibility' as a status that can result from" an alien's commission of certain offenses listed in section 212(a)(2) of the INA, even if that alien has already been admitted:

[A]s relevant here, [section 212(a)(2)] flatly says that a noncitizen such as Barton who commits a crime involving moral turpitude and is convicted of that offense "is inadmissible." ... Full stop. ... Those provisions do not say that a noncitizen will become inadmissible if the noncitizen is found inadmissible in a subsequent immigration removal proceeding. Instead, those provisions say that the noncitizen "is inadmissible."

In support of this interpretation, the majority noted that a lawfully admitted alien convicted of a criminal offense under section 212(a)(2) of the INA is usually not removable pursuant to that provision, but could be nonetheless be barred as a result of such inadmissibility from adjustment of status under section 245(a)(2) and (l)(2) of the INA or temporary protected status under section 244(c)(1)(A)(iii) of the INA, and could lose special agricultural worker temporary resident status under section 210(a)(3)(B)(ii) of the INA.

The Court next rejected Barton's argument that its interpretation would render the phrase "or removable from United States under section 237(a)(2)" in the stop-time rule surplusage, noting:

[R]edundancies are common in statutory drafting — sometimes in a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack of foresight, or sometimes simply because of the shortcomings of human communication. ... Redundancy in one portion of a statute is not a license to rewrite or eviscerate another portion of the statute contrary to its text.

This issue with the phrasing of the stop-time rule almost definitely resulted from the fact that 42A cancellation was added to the INA as a substitute for the waiver of excludability previously available under former section 212(c) of the INA, the application of which itself had a "complicated" history.

As the former Immigration and Naturalization Service explained:

Before the comprehensive revision of the INA by the [Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)] and the [Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)], section 212(c) provided that LPRs who temporarily proceeded abroad voluntarily and not under an order of deportation, and who were returning to a lawful unrelinquished domicile in the United States of seven consecutive years, could be admitted to the United States in the discretion of the Attorney General. ... This form of relief was discretionary, but, if granted, allowed the LPR to remain in the United States notwithstanding the prior conviction. Judicial interpretation of former section 212(c) permitted the waiver of certain grounds of deportability as well as certain grounds of excludability (now known as inadmissibility).

Note the last sentence: Section 212(c) as written by Congress provided a waiver of then-grounds of exclusion (now grounds of inadmissibility), a waiver courts subsequently extended to grounds of deportability. Former section 212(c) relief was only available, however, to waive a ground of deportability for which there was a corresponding ground of excludability (a principle that I note at least one circuit court disagreed with in one instance), meaning that it generally did not waive all grounds of deportability.

Subsequently, AEDPA narrowed the availability of that 212(c) waiver, while IIRIRA repealed it and replaced it (with modifications) with 42A cancellation.

The replacement of the section 212(c) exclusion waiver with 42A cancellation resolved a number of issues that had unduly complicated application of 212(c) relief in the deportation context, including the questions of whether an alien had to accrue seven years' of LPR status before being eligible for that waiver and when the seven-year period for that waiver commenced (as well as eliminating the cumbersome "corresponding ground of excludability" requirement noted above). It also broadened the availability of that relief for criminal aliens, which the amendments in AEDPA had all but eliminated, while still barring relief for aliens convicted of aggravated felonies or who had committed specified offenses before accruing seven years of residence (at issue in Barton).

The exclusionary waiver aspects of former section 212(c) plainly guided the drafting of the rules for 42A cancellation, however, as the stop-time rule demonstrates by its reference to "an offense referred to in section 212(a)(2)" as the key date in calculating the period of residence. Why would the stop-time rule refer to criminal grounds of inadmissibility for aliens who have already been admitted (the only aliens who are eligible for that relief)? Because that is how the waiver it replaced applied.

Congress likely did not want to muddy the waters with respect to relief that had already been churned by two decades of judicial interpretation, and so it wrote the stop-time rule as broadly as possible — even if that made the rule redundant in part.

This history of section 212(c)/42A cancellation supports the Supreme Court's conclusion that inadmissibility is a status for purposes of the stop-time rule. It also explains the somewhat "complicated" language in that rule.

In finding that the stop-time rule bars 42A cancellation based on the commission of a specified offense even if that offense is not a basis for the applicant's removal, the Court de jure overruled a contrary decision from the Ninth Circuit, Nguyen v. Sessions. It also reinforces Congress's plain intent in drafting that rule, and (with any luck) resolves the interpretation of a provision that is now almost 24 years old.